Opinion
2 CA-CR 2022-0052
04-12-2023
The State of Arizona, Appellee, v. Cody James Martinez, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Kaitlin Hollywood, Assistant Attorney General, Tucson Counsel for Appellee Law Office of S. Jonathan Young P.C., Tucson By S. Jonathan Young Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20031993001 The Honorable Howard Fell, Judge Pro Tempore
Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Kaitlin Hollywood, Assistant Attorney General, Tucson
Counsel for Appellee
Law Office of S. Jonathan Young P.C., Tucson
By S. Jonathan Young
Counsel for Appellant
Judge Kelly authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Eckerstrom concurred.
MEMORANDUM DECISION
KELLY, Judge:
¶1 Cody James Martinez appeals his sentences for first-degree murder and kidnapping. He argues the trial court erred in concluding it lacked legal authority to modify his sentence on the kidnapping count when he came before the court, following post-conviction relief, for resentencing on the murder count alone. For the reasons that follow, we affirm Martinez's sentences.
Factual and Procedural Background
¶2 In 2003, Martinez and several accomplices bound F.A., forced him into the trunk of a car, drove him into the desert, and shot and killed him. In 2005, following a jury trial, Martinez was found guilty of first-degree murder and kidnapping. The jury found two aggravating factors, did not find mitigation sufficiently substantial to warrant leniency, and sentenced Martinez to death. The trial court imposed a twenty-year prison term on the kidnapping count, to run consecutively to the sentence imposed on the murder count. On direct appeal, the Arizona Supreme Court upheld Martinez's convictions and sentences. See State v. Martinez, 218 Ariz. 421 (2008).
The jury found Martinez guilty of first-degree murder under both premeditated and felony-murder theories.
Specifically, it found the murder was committed for pecuniary gain and in an especially heinous, cruel or depraved manner. See A.R.S. § 13-751(F).
¶3 In 2014, Martinez filed a petition for post-conviction relief alleging various claims of ineffective assistance of counsel. After a five-day evidentiary hearing in 2017, the post-conviction court found that his trial counsel had fallen "below objectively reasonable standards" during the penalty phase of the trial and that Martinez had been prejudiced by the ineffectiveness. It therefore vacated the death sentence, but determined Martinez's remaining claims were precluded. Both parties petitioned for review. State v. Martinez, No. CR-17-0225-PC (Ariz. Apr. 30, 2019) (order). The Arizona Supreme Court denied the state's cross-petition for relief from the post-conviction court's decision to vacate Martinez's death sentence, and granted Martinez's petition in part, remanding and directing the post-conviction court to rule on the merits of the other claims it had deemed precluded. Id.
¶4 The post-conviction court, after receiving supplemental briefing, reconsidered Martinez's additional claims on their merits- including his guilt and aggravation phase claims-and denied any additional relief. Martinez filed a petition for review to the Arizona Supreme Court in 2021, which the court denied. State v. Martinez, No. CR- 20-0104-PC (Ariz. Feb. 2, 2021) (order). He then filed a petition for certiorari with the Supreme Court of the United States, which was also denied in June 2021. Martinez v. Arizona, U.S. __,__ 141 S.Ct. 2731 (2021).
¶5 Before retrial on the penalty phase, the state withdrew its intent to seek the death penalty on the first-degree murder count. At Martinez's resentencing on this count in December 2021, Martinez urged the trial court to sentence him to life without the possibility of release for twenty-five years, and to order that sentence to run concurrently with the previously imposed kidnapping sentence. The court sentenced Martinez to twenty-five years to life on the murder count, and declined to change the sentence on the kidnapping count, stating its belief that it had no authority to modify the consecutive nature of that sentence "whether [it] would want to or not."
¶6 Martinez appealed from his resentencing and the trial court's denial of his subsequent motion to modify his sentence filed pursuant to Rule 24.3, Ariz. R. Crim. P. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
¶7 A trial court has broad discretion in determining an appropriate sentence, and a sentence that is within statutory limits will not be disturbed on appeal unless the court has abused its discretion. State v. Cazares, 205 Ariz. 425, ¶ 6 (App. 2003). Moreover, the trial court lacks authority to change a final sentence except to modify "any unlawful sentence or one imposed in an unlawful manner." Ariz. R. Crim. P. 24.3; see State v. Suniga, 145 Ariz. 389, 393 (App. 1985); see also State v. Thomas, 142 Ariz. 201, 204 (App. 1984) (stating trial court lacks jurisdictional authority to change sentence if it was neither unlawful nor imposed in an unlawful manner). A sentence is unlawful if it falls outside the statutory range, and is imposed in an unlawful manner if it is rendered without "due regard to the procedures required by statute or Rule 26 of the Arizona Rules of Criminal Procedure." State v. House, 169 Ariz. 572, 573-74 (App. 1991) (quoting State v. Glasscock, 168 Ariz. 265, 267 (App. 1991)).
¶8 On appeal, Martinez contends the trial court "mistakenly believed" it lacked authority under State v. Healer, 246 Ariz. 441 (App. 2019) to change the sentence previously imposed on the kidnapping count when he came before the court for resentencing only as to the murder count. Because the court correctly interpreted and applied the principle set forth in Healer, it did not abuse its discretion.
¶9 In Healer, the defendant, who was sixteen years old at the time of the offense, was convicted of multiple offenses, and the trial court sentenced him to natural life for first-degree murder, and "additional concurrent and consecutive prison terms totaling 13.5 years to run consecutively to his life sentence" for the remaining counts. Id. ¶ 2. Based on significant changes in the law announced in Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016), the Arizona Supreme Court granted Healer post-conviction relief, and remanded the case to determine whether resentencing on the first-degree murder conviction was warranted. State v. Valencia, 241 Ariz. 206, ¶ 20 (2016).
¶10 On remand, the state stipulated to resentencing on Healer's first-degree murder conviction, and the trial court resentenced him to life imprisonment without the possibility of parole for twenty-five years. Healer, 246 Ariz. 441, ¶ 4. The court, however, concluded it lacked authority to modify the previously imposed sentences on the remaining convictions due to the limited nature of the remand. Id. ¶ 14. On appeal from that ruling, this court agreed the trial court lacked authority to resentence Healer on anything other than the first-degree murder conviction. Id. ¶ 19. We reasoned that, because our supreme court had limited its remand to the sole issue of whether the defendant was entitled to resentencing on the first degree-murder count, the trial court lacked the authority to change the consecutive nature of Healer's other sentences. Id. (citing State v. Hartford, 145 Ariz. 403, 405 (App. 1985)).
¶11 Applying Healer to the instant matter, the trial court correctly concluded it lacked authority to revisit the term of imprisonment or the consecutive nature of Martinez's lawfully imposed kidnapping sentence. The court ordered the kidnapping sentence to run consecutively to the sentence imposed on the murder count at Martinez's original sentencing, and the relief granted in post-conviction proceedings applied only to the latter. Martinez's kidnapping sentence was, and has remained, a lawful sentence, having been affirmed by the Arizona Supreme Court and the trial court in multiple post-conviction proceedings. The court did not abuse its discretion by declining to modify it.
The post-conviction court found that ineffective assistance of counsel had undermined confidence in the outcome of the penalty phase of the trial, and "vacat[ed] the sentence of death" only.
¶12 Martinez asserts Healer is distinguishable because "[t]he Arizona Supreme Court never remanded for resentencing in Mr. Martinez's case, much less limited remand to any particular count." This distinction is without merit. A Rule 32 proceeding, although distinct from a direct appeal under Rule 31, Ariz. R. Crim. P., is itself a review of a defendant's conviction. See Montgomery v. Sheldon, 181 Ariz. 256, 258 (1995); see State v. Carriger, 143 Ariz. 142, 145 (1984) (although procedurally distinct, Rule 32 proceedings and direct appeal are both devices for ensuring that every defendant receives due process of law).
¶13 Martinez cites no authority requiring that we apply a different rule in assessing resentencing after a defendant obtains relief in a Rule 32 proceeding than is applied when relief follows a direct appeal. In both cases, the remaining sentences were already "complete and valid" at the time of resentencing and therefore could not be modified by the trial court except as provided by Rule 24.3, Ariz. R. Crim. P. State v. Serrano, 234 Ariz. 491, ¶ 9 (App. 2014).
Although, as noted above, Martinez appealed from the court's Rule 24.3 ruling, he has not separately explained on appeal how that ruling was in error, and any such argument is therefore waived. See State v. Vargas, 249 Ariz. 186, ¶ 22 (2020).
¶14 We likewise reject Martinez's argument that his sentences were impermissibly aggravated "with the same aggravators for which trial counsel was found ineffective." In so arguing, Martinez attempts to resurrect a claim previously rejected by the trial court in prior postconviction proceedings and fully litigated to the supreme court on petition for review. Our review here is limited to a review of the resentencing proceedings. See Hartford, 145 Ariz. at 405 (stating validity of underlying conviction is beyond scope of appeal on resentencing). We will not address these collateral attacks on issues previously decided by the courts. See generally State ex rel. Collins v. Superior Court, 157 Ariz. 71, 75 (1988).
¶15 We also reject Martinez's claim that "the last sentencing judge determines whether that last sentence runs concurrent or consecutive," citing State v. Moreno, 173 Ariz. 471, 473-74 (App. 1992), and State v. King, 166 Ariz. 342, 344 (App. 1990). The authority Martinez relies on here is distinguishable, as neither case involved resentencing on remand and instead concerned the validity of sentences originally ordered to run consecutively or concurrently to another sentence "that may be imposed in the future." See Moreno, 173 Ariz. at 473-74; King, 166 Ariz. at 344.
Disposition
¶16 We affirm Martinez's sentences.